I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Friday, December 15, 2006

The real reason why Judge Jones ignored defense arguments

I have finally realized the real reason why the ID-as-science section of Judge Jones' Kitzmiller v. Dover opinion largely or completely ignores the defense arguments (over 90 percent of this section was written by the ACLU) : Jones knew that an appeal was unlikely because of the changeover in school board membership in the election. Had there been a good possibility of an appeal, Jones probably would have answered the defense arguments because presumably he would not have wanted his opinion to go to the appeals court without answers to those arguments.

Also, Jones said that the outcome of the election would not affect his decision. What a joke.

The Dover opinion is not worth the legal stationery that it's printed on.

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14 Comments:

Anonymous Voice In The Urbanness said...

> I have finally realized the real reason why the ID-as-science section of Judge Jones' Kitzmiller v. Dover opinion largely or completely ignores the defense arguments <

You mean because the defense arguments were so vapid?

> Also, Jones said that the outcome of the election would not affect his decision. <

What evidence do you have, except your conspiracy theory, that it did?

> The Dover opinion is not worth the legal stationery that it's printed on. <

Except it is the law. If you lost, just take it graciously.

Saturday, December 16, 2006 9:48:00 AM  
Blogger Larry Fafarman said...

Voice In The Urbanness wheezed,

>>>>>> I have finally realized the real reason why the ID-as-science section of Judge Jones' Kitzmiller v. Dover opinion largely or completely ignores the defense arguments<

You mean because the defense arguments were so vapid?<<<<<<

VIU, all you do is just make unsupported assertions, and you think this is a sign of brilliance.

Stupid fatheaded ignoramuses like VIU think that judicial opinions are supposed to present only the winning side's arguments and completely ignore the losing side's arguments.

>>>>>> The Dover opinion is not worth the legal stationery that it's printed on.<

Except it is the law. <<<<<<

"It is the law"? Where? I don't think it is the law even in Judge Jones' own Middle District of Pennsylvania (except for the Dover Area school district). It would not be reasonable to use a single judge's decision as controlling precedent.

Saturday, December 16, 2006 10:58:00 AM  
Blogger Larry Fafarman said...

BTW, VIU, I have noticed that the Supreme Court has often answered arguments that it considers to be absurd just in order to show that those arguments were examined.

Saturday, December 16, 2006 2:11:00 PM  
Anonymous Voice In The Urbanness said...

> VIU, all you do is just make unsupported assertions, and you think this is a sign of brilliance. <

If you will notice, that is all you have done since you started this blog.

Saturday, December 16, 2006 5:33:00 PM  
Anonymous W. Kevin Vicklund said...

I guess that Judge Jones must have amazing psychic powers, because how could he otherwise know that:

a) the parents that tried to intervene would not appeal his dismissal

b) the FTE would not appeal his dismissal of their attempt to intervene

c) the defendants would not appeal after trial his dismissal of their summary motion (remember, the original board was still in place at the time)

d) the defendants would not appeal after trial his dismissal of their pretrial motions in limine (see c) above)

e) the DI would not appeal his denial of their application to file the amicus brief

In all of those examples, Jones copied extensively from the plaintiff's briefs without copying the opposing briefs. So according to your theory, he had to know that these would not be appealed, yet the first two could be immediately appealed, and I believe but have not confirmed that e) could also be immediately appealed. Items c) and d) could become grounds for appeal if he ruled against the defendants, so your argument implies that he knew before the elections that the defendants wouldn't appeal.

Monday, December 18, 2006 10:27:00 AM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said...
>>>>> I guess that Judge Jones must have amazing psychic powers, because how could he otherwise know that:

a) the parents that tried to intervene would not appeal his dismissal

b) the FTE would not appeal his dismissal of their attempt to intervene

c) the defendants would not appeal after trial his dismissal of their summary motion (remember, the original board was still in place at the time)

d) the defendants would not appeal after trial his dismissal of their pretrial motions in limine (see c) above)

e) the DI would not appeal his denial of their application to file the amicus brief <<<<<

These parties' standing to appeal those rulings had already expired. They could have made interlocutory appeals but chose not to (I think that FTE had a particularly strong case).

Monday, December 18, 2006 4:55:00 PM  
Anonymous W. Kevin Vicklund said...

>>>These parties' standing to appeal those rulings had already expired. They could have made interlocutory appeals but chose not to (I think that FTE had a particularly strong case).<<<

Since when did standing to appeal a ruling expire before that ruling is written? Try learning how to read, Larry. The order (as in decision) in which Jones denied the parents intervention was copied extensively from the plaintiff's briefs opposing the parents intervention. And so on. How stupid are you?

By the way, an appeal from a denial of intervention is not an interlocutory appeal. A denial of intervention is considered a final order because it ends a potential party's involvement in a case. An appeal from a decision granting intervention, however, is interlocutory, and thus is not normally permitted until a final decision is rendered.

Monday, December 18, 2006 6:41:00 PM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said...
>>>>> By the way, an appeal from a denial of intervention is not an interlocutory appeal. A denial of intervention is considered a final order because it ends a potential party's involvement in a case. <<<<<

It is interlocutory so far as the trial itself is concerned. An appeal of a denial of intervention, like all other appeals of final actions, must be made within 30 days -- or 60 days when the US is a party -- of the denial.

>>>>> An appeal from a decision granting intervention, however, is interlocutory, and thus is not normally permitted until a final decision is rendered. <<<<<

That's ridiculous -- that is much too late. By then the only remedy would be to hold the whole trial over again. Grants of intervention must be appealed within 30 or 60 days, just like all other appeals of final actions. Furthermore, "interlocutory" in the sense here means something done prior to final judgment of the whole case. The Findlaw legal dictionary defines the word as follows:

: not final or definitive
Example: an interlocutory order

broadly
: made or done during the progress of an action esp. when delay would cause irreversible injury
Example: an interlocutory appeal
(emphasis added)

Monday, December 18, 2006 11:11:00 PM  
Anonymous Voice in the Wilderness said...

> By the way, an appeal from a denial of intervention is not an interlocutory appeal. A denial of intervention is considered a final order because it ends a potential party's involvement in a case. An appeal from a decision granting intervention, however, is interlocutory, and thus is not normally permitted until a final decision is rendered. <

This is entirely over Larry(?)'s head. He has already shown that he knows nothing about law.

Monday, December 18, 2006 11:12:00 PM  
Blogger Larry Fafarman said...

BTW, the rules governing interlocutory appeals are FRAP Rules 3 and 4.

Monday, December 18, 2006 11:34:00 PM  
Anonymous Voice in the Wilderness said...

> BTW, the rules governing interlocutory appeals are FRAP Rules 3 and 4. <

But first you have to know what interlocutory appeals are. Word searches do no good in doing research if you don't know what the terms mean. You might see if you can find a law dictionary. The index of a law book might find the terms you want but they will tell you little about the definitions. That's why you have spent so much time attempting to study law yet still remain ignorant.

Tuesday, December 19, 2006 7:41:00 AM  
Anonymous W. Kevin Vicklund said...

>>>It is interlocutory so far as the trial itself is concerned.<<<

It is not, however, interlocutory as far as the party affected is concerned, which is what matters for the legal definition.

>>>An appeal of a denial of intervention, like all other appeals of final actions, must be made within 30 days -- or 60 days when the US is a party -- of the denial.<<<

Agreed. And since a final action is by definition not an interlocutory action, you have managed to contradict yourself in one paragraph.

>>>>>> An appeal from a decision granting intervention, however, is interlocutory, and thus is not normally permitted until a final decision is rendered. <<<<<<

>>>That's ridiculous -- that is much too late. By then the only remedy would be to hold the whole trial over again. Grants of intervention must be appealed within 30 or 60 days, just like all other appeals of final actions.<<<

There are other remedies available. For example, one remedy would be to disregard all findings of fact and conclusions of law arising from the intervening party's testimony, which could cause a decision to be vacated. Do you have any support for your contention that grants of intervention must be appealed as a final action rather than as a basis for an appeal of the overall case?

>>>Furthermore, "interlocutory" in the sense here means something done prior to final judgment of the whole case.<<<

You may be using it that way in a non-legal sense, but in the legal sense, that is an incorrect definition.

>>>The Findlaw legal dictionary defines the word as follows:

: not final or definitive
Example: an interlocutory order

broadly
: made or done during the progress of an action esp. when delay would cause irreversible injury
Example: an interlocutory appeal (emphasis added)<<<

Note that FindLaw defines interlocutory as "not final" and done "during the progress of an action" A final action is therefor the antithesis of an interlocutory action.

FRAP 3 covers appeal as of right, whereas FRAP 4 covers appeal by permission. Appeal as of right is covered by USC 28§1291 (Final decisions of district courts) and USC 28§1292(a) (Interlocutory decisions). Appeal by permission is covered by 28§1292(b) (Interlocutory decisions). [Note: 1292(c) and (d) are specific to the Federal Circuit, while (e) allows for additional rules for interlocutory appeals in the FRAP]

It is clear that from a legal standpoint, a decision is either final or interlocutory. While we could analyze whether intervention is included in 1292(a) (it isn't), let's look instead at what the courts have to say.

I'm not certain how to properly cite this, so I'll call it DEFCO v. Sylvan (decided in the Third Circuit).

Sylvan filed a
timely notice of appeal, and we have jurisdiction under 28
U.S.C. §1291 because the denial of a motion to intervene as
of right is a final, appealable order. United States v.
Alcan Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir. 1994).


The courts say it is a final order, Larry.

Tuesday, December 19, 2006 9:19:00 AM  
Blogger Larry Fafarman said...

Kevin Vicklund said,
>>>It is interlocutory so far as the trial itself is concerned.<

It is not, however, interlocutory as far as the party affected is concerned, which is what matters for the legal definition. <<<<<<

What matters so far as the legal definition is concerned is the potential effect on the case itself as well as the effect on the party seeking intervention. An appeal of a denial of intervention could have a profound effect on the proceedings of the case itself -- the party appealing the denial could even ask the appeals court to issue a temporary restraining order or temporary injunction to halt case proceedings pending the outcome of the appeal.

Any denial of a motion is "final" with respect to the moving party. Does that mean that no appeal of a denial of a motion is interlocutory?

I think that FTE had a very strong case for appeal of the denial of intervention: (1) no new issues, (2) no new expert witnesses, (3) several months till the start of the courtroom trial, (4) strong economic interest, (5) the subpoena from the plaintiffs was the first sign that FTE's book would be central to the case, and (6) special expertise about the book.

>>>>> There are other remedies available. For example, one remedy would be to disregard all findings of fact and conclusions of law arising from the intervening party's testimony, which could cause a decision to be vacated. <<<<<<

What you are saying makes no sense at all. If intervention is denied, then there would not necessarily be any testimony from the party that sought intervention, and deleting that party's testimony -- if it exists -- would not necessarily be a remedy. Also, the courts would likely give no remedy at all because of the untimeliness of seeking a remedy.

>>>>> Do you have any support for your contention that grants of intervention must be appealed as a final action rather than as a basis for an appeal of the overall case? <<<<<<

Yes, and I have already stated my supporting arguments : (1) after the conclusion of the case, the only remedy for a denial of intervention would be to try the whole case all over again, and (2) the rules for appeal are clear -- appeals must be filed within 30 or 60 (when the USA is a party) days of the action being appealed.

>>>>> Note that FindLaw defines interlocutory as "not final" and done "during the progress of an action." A final action is therefor the antithesis of an interlocutory action. <<<<<<

But Findlaw gives "interlocutory appeal" as an example of something interlocutory, and only final decisions can be appealed.

Why do you insist on complicating things, Kevin? Why not just define "interlocutory" as meaning something done during the progress of a case, whether or not that something is done by a party already in the case or by a party trying to get in -- i.e., a party seeking intervention?

>>>>> Sylvan filed a
timely notice of appeal, and we have jurisdiction under 28
U.S.C. §1291 because the denial of a motion to intervene as
of right is a final, appealable order. United States v.
Alcan Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir. 1994).


The courts say it is a final order, Larry. <<<<<<

Yes, because it is final with respect to the party seeking intervention. To be appealable, it must be final with respect to the party filing an appeal. But it is interlocutory with respect to the case as a whole.

Tuesday, December 19, 2006 12:50:00 PM  
Anonymous Voice in the Wilderness said...

> Why do you insist on complicating things, Kevin? Why not just define "interlocutory" as meaning something done during the progress of a case, whether or not that something is done by a party already in the case or by a party trying to get in -- i.e., a party seeking intervention? <

Why do you insist on trying to redefine words? Why not just use the conventional known (to everyone but you) definition of interlocutory?

Tuesday, December 19, 2006 1:15:00 PM  

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